Mediators Granted Confidentiality Rights

Local Matters

MONTPELIER -- There was a time when most lawsuits, child-custody battles and property disputes between neighbors were resolved through the court system -- usually a costly, time-consuming and painful process that, by its adversarial nature, creates winners and losers. Those days are becoming a thing of the past. Today, Vermont's legal system increasingly relies on professional mediators, or neutral third parties who are trained in the art of alternative dispute resolution. This week, Governor Jim Douglas is scheduled to sign into law a bill that encourages the use of professional mediators by granting them new legal privileges to protect their clients' confidentiality.

The Uniform Mediation Act spells out when professional mediators may refuse to disclose information revealed to them during a mediation session, and protects that information from being sought later in a court setting. Only eight other states and the District of Columbia have granted mediators this legal protection, which is similar to the attorney-client privilege. Advocates say the new law helps put Vermont at the forefront of the alternative dispute-resolution movement.

Most Vermont courts now require parties to try to resolve their differences through mediation before ever setting foot in a courtroom, explains Montpelier lawyer and mediator Emily Gould, who chairs the Vermont Bar Association's alternative dispute resolution committee. Judges in family, environmental, probate and small-claims courts often try mediation first because it saves time and money, eases pressures on an already overburdened legal system, and usually results in more satisfying outcomes for everyone involved.

Professional mediators typically ask their clients to sign an agreement that they will not disclose information discussed during mediation sessions. However, prior to this new law, attorneys and judges were under no legal obligation to recognize those contracts, and could subpoena mediators to testify about those communications.

"We know that confidentiality is part of the magic of why mediation works," says Gould. "The fact that we were holding out for our clients the promise of confidentiality without really resting assured that we had the law of the state behind us was not a healthy state of affairs."

The Uniform Mediation Act is an important improvement for a number of reasons, Gould explains. First, Vermont had few statutes and minimal case law dealing with mediation. Moreover, she says, "There's now a whole universe of mediation that's happening outside the courts -- in the workplace, in communities, in families," where no clear-cut rules or legal framework exist. The "uniform" nature of the law also means that other states will generally recognize Vermont's confidentiality protections, an important consideration in cases such as child-custody disputes.

"This is huge," says Neal Rodar, a professional mediator and executive director of the Dispute Resolution Center at Woodbury College in Montpelier. Rodar says that he's been subpoenaed, or threatened with subpoenas, more than any mediator he knows, and that detracts from the integrity of the process.

"To be honest, it's scary sometimes," Rodar says. "I'm not somebody who enjoys going to court and speaking in front of people . . . This is going to be a big help in legitimizing the process with the public as well."

Both Gould and Rodar credit Seven Days for an August 2005 story on mediation, which helped bring this issue to the attention of Rep. Bill Lippert (D-Hinesburg), chair of the House Judiciary Committee. "The fact that Bill Lippert could read your article and call up Neal [Rodar] and say, 'How can I help?' and nine months later we have our bill, that kind of thing can happen in Vermont," says Gould.

The Uniform Mediation Act also spells out exceptions to the confidentiality rule, such as cases in which one party threatens violence against the other, or when the information is needed to prove or disprove allegations of child abuse or neglect. This provision was important to advocates of domestic-violence victims, who feared that the law might put some victims at risk of injury or shield batterers from prosecution. However, under the new law, mediators can now recommend to a judge that a case is inappropriate for mediation, without having to disclose the reasons why.

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